The United States Supreme Court issued an opinion on Monday that addressed whether Social Security Survivors' benefits were payable to posthumously born children who were conceived after their father's death.

The case involved twin children conceived by Karen Capato through in vitro fertilization after her husband's death from cancer. Her husband had preserved his sperm after being diagnosed with cancer because he feared the cancer treatment would make him sterile. He died shortly afterwards and his wife conceived the twins about 18 months after his death. She applied to the Social Security Administration for survivors' benefits for the children. She had won her case in the lower federal appellate court, but the Social Security Administration appealed to the U.S. Supreme Court.

The justices in this case examined several sections of the Social Security Act. The court found that while the Capato children met the definition of child under the act, they didn't meet the act's requirements for family status in order to qualify for survivor benefits. One of those requirements was whether the children could inherit under the intestacy law of their father's residence at death. Florida's law permits children born posthumously to inherit only if they were conceived during the father's lifetime.

It might seem likely a rare circumstance that would require such a ruling but PSB News Hour reports that there are currently more than 100 applications for survivor benefits pending with the social security administration from posthumously conceived children. Whether is decision will apply to them will depend heavily on what state their deceased parent resided in at the time his death. In 2011 Washington State addressed the issue of posthumously born children in RCW 26.26.730 but determining that If an individual who consented in a record to be a parent by assisted reproduction dies before placement of eggs, sperm, or an embryo, the deceased individual is not a parent of the resulting child unless the deceased individual consented in a signed record that if assisted reproduction were to occur after death, the deceased individual would be a parent of the child.

The decision in the Capato case is silent as to whether such a record existed but it seems unlikely since such an option isn't contemplated under Florida Law but it would likely be the deciding factor for children conceived after the death of a parent who was a resident of Washington State at death.

If you have questions about the rights of posthumously born children or other circumstances raised by non-traditional family relationships, please contact us for a free consultation at (206) 459-1908 or email us at info@phinneyestatelaw.com.

PEL Blog

This Blog is written by Seattle Attorneys Jamie Clausen & Michael Ballnik. It is made available for educational purposes only. Its purpose is to give you general information and a general understanding of the law, not to provide specific legal advice. Reading this blog does not create an attorney client relationship between you and Phinney Estate Law. Because each individual and family is unique, the Blog should not be used as a substitute for legal advice from a licensed professional attorney in your state.